The opinion of the court was delivered by: M. James Lorenz United States District Court Judge

ORDER GRANTING PLAINTIFF'S AND COUNTER-DEFENDANT'S MOTION IN LIMINE No. 1 WITH RESPECT TO DEFENDANT AND COUNTER-CLAIMANT'S EXHIBIT F AND RELATED COUNTERCLAIM

Plaintiff and Counter-Defendant Dimension One Spas, Inc. ("Dimension One") filed its motion in limine no. 1 to exclude Defendants and Counter-claimants Coverplay, Inc. and E. Jess Tudor's (collectively "Coverplay") Exhibits F and G, consisting of U.S. Patent Nos. 4,857,374 and 5,819,332, respectively. By order filed December 23, 2006, and for reasons stated therein, the court denied the motion with respect to Coverplay's Exhibit G as moot, and denied without prejudice the motion with respect to Exhibit F. To the extent the motion with respect to Exhibit F was based on Federal Rule of Civil Procedure 37(c), the court granted Dimension One leave to renew it orally immediately prior to commencement of trial without any additional briefing. The purpose was to give Coverplay an opportunity to present any evidence or argument pursuant to Rule 37(c) regarding substantial justification for the delay in disclosure of this exhibit and harmlessness from the delay. (See Order Denying Without Prejudice Pl.'s and Counter-Def.'s in Limine No. 1, filed 12/23/06, at 4-5.) For the reasons stated in the December 23 order, this was necessary because Dimension One's Rule 37(c) arguments were raised in its reply.

On January 4, 2007, the court granted the parties' joint request to continue trial, and at the same time amended the December 23 order by allowing briefing on the Rule 37(c) issue, rather than limiting the parties to oral argument. (See Order Continuing Trial Date; (2) Setting Briefing Schedule; and (3) Continuing Pretrial Dates, filed 1/4/07.) While Dimension One was directed to file a notice, the order did not allow for further briefing by Dimension One, since it already presented its evidence and argument in its motion in limine papers. The January 4 order provided an opportunity for Coverplay to brief its arguments and evidence in opposition, and for Dimension One to reply to that. (Id.)

Dimension One filed its notice pursuant to the January 4 order, and based it on the previously filed motion in limine papers. In opposition, Coverplay did not present any substantive argument or evidence. Its argument that Dimension One was obligated to and failed to meet the burden associated with motions for reconsideration, as provided in Civil Local Rule 7.1(i)(1), ignores the procedure set out in the December 23 and January 4 orders, and is inapposite in light of those orders.

Since Coverplay did not present any argument or evidence relevant to the delay in its disclosure of Exhibit F or harmlessness of the delay as provided in Rule 37(c), and for reasons stated in the December 23 order, which are incorporated herein by reference, Dimension One's Motion in Limine No. 1 is GRANTED with respect to Coverplay's Exhibit F.

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